ERIC P. EARLY et al. v. XAVIER BECERRA et al.
No. C087947
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 4/2/20
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 34-2018-80002902-CU-WM-GDS)
APPEAL from a judgment of the Superior Court of Sacramento County, Richard K. Sueyoshi, Judge. Affirmed.
Kaufman Legal Group, Stephen J. Kaufman, Gary S. Winuk, George M. Yin; Downey Brand and Jay-Allen Eisen for Defendants and Respondents Xavier Becerra and Becerra for Attorney General 2018.
Steven J. Reyes and Lisa M. Alarcon for Defendant and Respondent Alex Padilla.
Appellants Eric P. Early and his election committee, Eric Early for Attorney General 2018 (collectively, Early), appeal from denial of their petition for writ of mandate to preclude respondent Xavier Becerra from running for Attorney General in 2018. Early contended that Becerra, appointed Attorney General by former Governor Brown in 2016, was not eligible for the office under
Early argues that an “inactive” attorney may not practice law in California and therefore is not “admitted to practice” under
FACTUAL AND PROCEDURAL BACKGROUND
Becerra was admitted to the State Bar on June 14, 1985, and changed his status to inactive on January 1, 1991. From January 1, 1993, until January 2017, Becerra served as a member of the United States House of Representatives.2 He changed his status back to active on January 1, 2017, after he was appointed Attorney General by Governor Brown. Becerra completed the term of office of Attorney General that Kamala Harris vacated to run for the United States Senate. Becerra then ran as a candidate for the office in the November 2018 election.
On May 29, 2018, Early filed a petition for extraordinary writ to require the Secretary of State to remove Becerra‘s name from the November 2018 election ballot or to prohibit the Secretary of State from placing Becerra‘s name on the ballot. Early also sought a declaratory judgment that Becerra was ineligible for the office of Attorney General. Early advised that he was not seeking to invalidate Becerra‘s appointment or remove him from office, but solely to take Becerra off the ballot to prevent a further violation of the eligibility requirements.3
Early‘s position was that Becerra did not meet the eligibility requirements of
On June 25, 2018, Becerra answered the petition and filed an opposition brief. In his opposition, Becerra stated that “[t]he California Supreme Court admitted Becerra to practice on June 14, 1985, and he has been a member in good standing ever since. Thus, Becerra has been ‘admitted to practice’ continually for more than 30 years.” Becerra argued that, “[i]gnoring the plain language of [
On July 6, 2018, Early filed a reply brief, in which he rejoined that “[g]iven that the legislative purpose behind
On July 12, 2018, the trial court issued a tentative ruling denying the petition. The court found that the plain language of
On July 13, 2018, the trial court conducted a hearing on the petition. At the hearing, Early‘s counsel made an oral motion to dismiss the claim for declaratory relief as duplicative of the petition.
On July 24, 2018, Early filed an emergency petition for writ of mandate with this court. Early requested an immediate stay in light of the upcoming election.
On July 31, 2018, the trial court issued an order denying the writ and dismissing the complaint, and entered judgment in favor of Becerra.
On August 2, 2018, this court denied the petition and request for stay, citing Chambers v. Terry (1940) 40 Cal.App.2d 153.
On August 7, 2018, Early filed a petition for review and request for immediate stay with the California Supreme Court. The next day the court requested informal opposition, which Becerra filed the following day, as directed by the court. On August 10, 2018, Early filed a reply. The same day the California Supreme Court denied the petition for review and application for stay.
DISCUSSION
Standard of Review
“The standards applicable to appellate review of a trial court‘s interpretation of a statute are well established. Appellate courts review statutory interpretations de novo. [Citation.]” (California Teachers Assn. v. Governing Bd. of Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 190 (California Teachers Assn.).)
” ‘Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we ” ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” ’ ” (California Teachers Assn., supra, 95 Cal.App.4th at p. 191, quoting Day v. City of Fontana (2001) 25 Cal.4th 268, 272; see also Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 731.)
Mootness
We are informed by Becerra‘s motion for judicial notice that he was elected Attorney General in 2018. None of the parties has addressed the issue of mootness raised thereby. We conclude that this case is not moot because, as shown by the challenges to both Becerra and former Governor Brown, it poses an issue of broad public interest that is likely to recur. (Johnson v. Hamilton (1975) 15 Cal.3d 461, 465; Green v. Layton (1975) 14 Cal.3d 922, 925; Kunde v. Seiler (2011) 197 Cal.App.4th 518, 527.)
Government Code Section 12503
Early contends “[t]he phrase ‘admitted to practice’ as used in the statute can mean only one thing—the actual ability to practice law.” However, the word “actual“—or “active,” for that matter, does not appear in the statute. It is axiomatic that “[w]e are prohibited from inserting words into a statute under the guise of statutory interpretation.” In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1527; Greiner v. Keller (2019) 36 Cal.App.5th 332, 338.)
Nonetheless, Early reasons that an attorney who voluntarily takes “inactive” status may not practice law, and therefore is not “admitted to practice” in California. We conclude that admission to practice law as a member of the State Bar and the status of being admitted to the bar are distinct from the status of being an inactive member. Under the State Bar Act (
In sum, under the State Bar Act, an inactive member may not practice law in California but remains admitted in the state and a member of the bar. The State Bar Act confirms our interpretation of the plain language of
Analogous Authorities on Eligibility for Judicial Office
The parties do not cite any case law or other authority interpreting
Early relies on a case involving former section 23 of article VI of the California Constitution, Johnson v. State Bar of California (1937) 10 Cal.2d 212 (Johnson), as supporting his position that
The discussion in Johnson did not involve a determination whether voluntary inactive status, as opposed to suspension by the Supreme Court, counted
Closer to the mark is Early‘s reliance on 63 Ops.Cal.Atty.Gen. 260 (1980), which addressed the question whether two years while a member was suspended for nonpayment of State Bar fees counted towards the 10-year period of State Bar membership required to be eligible for selection as a judge in any state court but the municipal court. Under the State Bar Act, the California Supreme Court may impose disciplinary suspension of bar membership or suspend membership for nonpayment of annual fees. (63 Ops.Cal.Atty.Gen., at pp. 262-263, citing, inter alia,
The Attorney General noted that the Supreme Court held in Johnson that a person who had been suspended from practice for disciplinary reasons during the requisite period was not eligible for judicial office. (63 Ops.Cal.Atty.Gen., supra, at p. 264.) But the question of whether suspension for nonpayment of fees affected eligibility had not yet been addressed. (
The Supreme
Becerra relies heavily on Chambers v. Terry, supra, 40 Cal.App.2d 153. In that case, the court considered a state statute providing that municipal court judges in San Diego ” ‘must have had at least five years active practice at law in this State prior to their election or appointment.’ ” (Id. at p. 154.) Following an election for the office of municipal court judge, the losing contestant cited this statute and contended that the winner was “ineligible and not qualified to be elected to this office for the reason that he ‘had not had at least five years active practice at law in this State prior to his said election.’ ” (Ibid.) As quoted above, section 23 of article VI of the state Constitution then in effect required a candidate for judicial office to ” ‘have been admitted to practice before the supreme court of the State for a period of at least five years immediately preceding his election or appointment to such office.’ ” (Chambers v. Terry, at p. 155.) The court in Chambers v. Terry held that the statute regarding San Diego municipal court judges was unconstitutional in specifying an eligibility requirement in excess of article VI, section 23 of the California Constitution, fixing “the legal qualification of such judges, having to do with their training, ability and experience in the legal profession . . . .” (Chambers v. Terry, at p. 156)
In Chambers v. Terry, the only specification in the statute in excess of the constitutional provision was the requirement of “active” practice. (Chambers v. Terry, supra, 40 Cal.App.2d at p. 155; compare Bagg v. Wickizer (1935) 9 Cal.App.2d 753, 757 [statute requiring ” ‘not less than two years actual practice of law in this state’ ” prior to election or assuming duties of justice of the peace means “the real and active practice of law . . .“].) Requiring “active” status for eligibility to serve as Attorney General is likewise in excess of the “admitted to practice” language in
The distinction between suspension and voluntarily inactive status was the focus of a 1973 opinion letter from the Attorney General to a traffic referee, which concluded that, according to the plain language of article VI, section 15 of the state Constitution, “an inactive member of the State Bar is considered a member of the State Bar. Hence, inactive membership may be included in
Accepting the premise that no change was intended between section 15 and section 23 of article VI of the state Constitution, the Attorney General analyzed Johnson, Chambers v. Terry, and other decisions, and determined that, while case law did not provide a definitive answer whether the Constitution required active membership for judicial appointment, “[i]t would appear to indicate that active membership per se was not a prerequisite. Admission to the bar, and the ability to actively practice, at the option of the admittee, appears to have been the criteria.” (No. IL 73-41, supra, at p. 4.)
The Attorney General pronounced this conclusion a salutary result. (No. IL 73-41, supra, at p. 6.) “Requiring that persons only be members of the State Bar, and not actual practitioners of the law, insures eligibility to judicial office for that vast reservoir of potential judicial talent who otherwise would be ineligible under a stricter interpretation of the California Constitution. This category could include law professors as well as individuals serving in quasi-judicial capacities, who, because of the inherent nature of their functions or personal preference, may become inactive members of the State Bar.” (Ibid.)
We find that the authorities—Indexed Letter, No. IL 73-41 and Chambers v. Terry—directed at the issue of active or inactive status more apposite regarding the “admitted to practice” language of
Amendment to Business and Professions Code Section 6006
Early argues that a 1989 amendment to
We believe that Becerra has the better argument that the 1989 amendment to
Becerra cites an enrolled bill report in the record on Senate Bill No. 905 (1989-1990 Reg. Sess.) prepared by the Office of Local Government Affairs that so states. The report includes the following commentary: “Currently, an individual must be a member of the State Bar for five years immediately proceeding [sic] appointment as municipal court judge, and ten years prior to being appointed as a judge to other state courts. [¶] According to Mark Harris with the State Bar Association, current law is unclear whether an attorney‘s time on inactive status would count toward their eligibility to run for, or be appointed to, a judicial position. Mr. Harris stated that only one case has addressed the issue. In that case an attorney was placed on involuntary inactive status during a disciplinary proceeding. The court determined that the attorney‘s inactive status should not count toward his eligibility to be appointed a judge. [¶] This bill would not apply to an attorney‘s involuntary inactive status, it would apply only where an attorney has voluntarily chosen to place himself or herself on inactive status.” (Office of Local Government Affairs, Enrolled Bill Rep. on Sen. Bill No. 905 (1989-1990 Reg. Sess.) Sept. 25, 1989, p. 3.) Thus, “[t]his measure would . . . clarify that qualified attorneys on voluntary inactive status would be eligible for consideration for judicial appointment.” (Id. at p. 4.)
The California Supreme Court in Johnson held that the time an attorney was suspended did not count towards the time required for eligibility for judicial office. (Johnson, supra, 10 Cal.2d at pp. 215-216.) Johnson was silent on voluntary inactive status, leaving its effect in that context unclear. Hence, the impetus was for a clarification, not a change in the law. (See Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1032; Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 243.) In light of Johnson, the amendment to
Early‘s final argument is that “two out-of-state cases premised on similar eligibility requirements for attorney general, have held the requirement of active membership and actual practice cannot be ignored or compromised.” As Becerra points out, both cases involved statutes containing an express actual or active practice requirement that
In Abrams v. Lamone (2007) 398 Md. 146 [919 A.2d 1223], cited by Early, the court interpreted a provision of the Maryland Constitution: ” ‘No person shall be eligible to the office of Attorney-General, who is not a citizen of this State, and a qualified voter therein, and has not resided and practiced Law in this State for at least ten years.’ ” (Abrams, at p. 1225, plur. opn. of Bell, C.J.) The court said the italicized language made membership in the state bar a threshold requirement. (Id. at pp. 1241-1243, plur. opn. of Bell, C.J.) But it also required more than bar membership. “Because the Attorney General was, and is, intended to be the foremost lawyer for the State, it is not surprising that a candidate for that office would be required to have more qualification than simply a bar membership, that it would be required that a person aspiring to that position would be required to be both learned in the law, as evidenced by his or her bar membership, and experienced in its practice, as reflected in his or her length of practice.” (Id. at p. 1253, plur. opn. of Bell, C.J.)
Whatever might have impelled Maryland to place language in its constitution requiring candidates for Attorney General to have actually practiced law for a prescribed period,
Early also cites Bysiewicz v. Dinardo (2010) 298 Conn. 748 [6 A.3d 726], where the Connecticut Supreme Court concluded that a statute requiring that the attorney general be ” ‘an attorney at law of at least ten years’ active practice at the bar of this state’ means an attorney with at least some experience litigating cases in court” (id. at p. 740) and “that the attorney general must have regularly engaged in the practice of law as a primary means of earning his or her livelihood for at least ten years.” (Id. at p. 746.) Bysiewicz v. Dinardo presents an even clearer case where the “active practice” language of the statute imposes eligibility requirements in excess of
We find Cross v. VanDyke (2014) 375 Mont. 535 [332 P.3d 215] (Cross), to be more apposite and instructive on the issue before us. In
In Cross, a group of voters challenged a candidate‘s eligibility to run for a seat on the Montana Supreme Court in 2014. (Cross, supra, 332 P.3d at p. 215.) The candidate was admitted to the state bar in 2005, voluntarily chose inactive status from 2007 to 2012 while he practiced outside the state, and returned to active status in Montana in 2013. (
To be eligible for judicial office, the Montana Constitution required a candidate to be ” ‘admitted to the practice of law in Montana for at least five years prior to the date of appointment or election.’ ” (Cross, supra, 332 P.3d at p. 217.) As in California, no inactive member may practice law in Montana. (Id. at p. 218.) The Montana Supreme Court had the authority to suspend or disbar a member. (Id. at pp. 218-219.) But in Cross, the candidate had not been terminated, suspended, or subjected to any form of disciplinary action. (Id. at p. 219.) By voluntary action, he chose “not to engage in the practice of law in Montana, selecting inactive membership for a period of approximately six years.” (
The Montana Supreme Court resolved whether this restriction rendered the candidate ineligible by noting the “key relevant distinction between the qualifications for judicial officers and the qualifications for Attorney General.” (Cross, supra, 332 P.3d at p. 219.) While candidates for both offices must reside in the state for two years and be “admitted to the practice of law in Montana, a candidate for Attorney General must have ‘engaged in the active practice thereof for at least five years before election.’ ” (
Unlike Montana, in California there is no “active practice” requirement for eligibility for the office of Attorney General. Candidates for both the
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/
RAYE, P. J.
We concur:
/s/
BUTZ, J.
/s/
HOCH, J.